ASIUR RAHMAN Vs. MUNSHI ASGAR ALI

JUDGEMENT

(1.) THERE were two suits one was brought by the present appellant against the respondent in which the appellant claimed that the respondent was his benamdar in respect of a certain mahal. The other suit was by the respondent against the appellant and others for recovery of possession of the mahal. The first suit was dismissed by the Munsif on the finding that the respondent was not the appellant's benamdar. The second suit was decreed; but it was found by the Munsif that the respondent who was the plaintiff in the suit was the benamdar for one Nezamat Ali. The defendant in that suit (the appellant) resisted the plaintiff's claim firstly, on the ground that the plaintiff was his benamdar; and secondly on the ground that he had some encumbrances which the plaintiff was not entitled to annul or ignore. The first ground was settled by the decision in the counter suit in which the appellant was the plaintiff. As to the second ground, the Munsif held that as the plaintiff Asgar Ali was a purchaser under Act XI of 1859 he was entitled to annul all encumbrances. On appeal the learned Additional District Judge has held that the interest of the appellant in the mahal was not a protected interest under Section 37 of Act XI of 1859 and, therefore, was not available against the purchaser at the revenue sale. The finding of the Munsif that Asgar (the respondent) was the benamdar of Nezamat Ali was not questioned before the learned Judge. He proceeded, therefore, on the assumption that he was such a benamdar and held that under the present law he is entitled to bring a suit for recovery of possession of the land in suit. The appellant before us has urged only one ground which seems to us to be substantial. His contention is that the encumbrances which he alleged to hold in the mahal are protected under Section 53 of Act XI of 1859, the purchaser who is the benamdar for the defaulting proprietor is only entitled to take the property subject to the encumbrance created by the defaulting proprietors and he has relied upon the rulings in the cases of Mahomed Gazee Chowdhry V/s. Pearee Mohan Mookerjee 16 W.R. 136, Alum Manjee V/s. Ashad Ali 16 W.R. 138, and Tarini Charan Sarkar V/s. Bishun Chand 44 Ind. Cas. 304 : 22 C.W.N. 505 : 23 M.L.T. 147 : 7 L.W. 315 : 27 C.L.J. 303 : 34 M.L.J. 361 : 4 P.L.W. 249 : 16 A.L.J. 271 : (1918) M.W.N. 295 : 20 Bom. L.R. 553 (P.C.), where their Lordships of the Judicial Committee affirmed the proposition. The appellant states before us that Nezamat Ali for whom the respondent is the benamdar was one of the defaulting proprietors of the mahal. THERE is no finding upon this point by either of the Courts below as their attention was not drawn to the provisions of Section 53 of Act XI of 1859. THERE is a statement in the judgment of the Munsif that Nizamat Ali is a major co-sharer in the mahal. But it is not known if he was one of the defaulting proprietors or had opened a separate account with the Collector in respect of his share in the mahal. The learned Vakil for the respondent does not question the principle of law relied upon by the appellant but he asks for a decision on the question as to whether Nezamat Ali was one of the defaulting proprietors and as such whether Section 53 is applicable to the present case. We think that in the circumstances of this case we should have a clear finding upon this point by the lower Appellate Court.

(2.) THE decree of the lower Appellate Court is, therefore, set aside and the case remanded to that Court for a finding as to whether Nezamat Ali was one of the defaulting proprietors. If there is sufficient evidence on the record in order to come to a finding upon this question the lower Appellate Court will either receive evidence, on the point or direct the Munsif to take such evidence and record his finding thereon. If the finding is in favour of the appellant, the question as to how far the interest claimed by him, which we understand is under a pottah and a mortgage: will be binding upon the respondent has also to be considered. Costs of this appeal will abide the result.